In Re the Marriage of James and Susan Short. v. Susan Short

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Mono)

July 27, 2011

IN RE THE MARRIAGE OF JAMES AND SUSAN SHORT. JAMES SHORT, APPELLANT,v.SUSAN SHORT, RESPONDENT.

(Super. Ct. No. FL16133)

The opinion of the court was delivered by: Hoch , J.

Marriage of Short CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this marital dissolution action between James Short and Susan Short, James appeals from the judgment's award of spousal support and division of property.*fn1 James contends the trial court erred by (1) failing to provide him with notice that a court reporter would not be provided during the second day of trial, (2) deeming his mandatory retirement contributions and the value of a car provided by his employer to be income for purposes of calculating spousal and child support, (3) finding that an automobile belonging to the marital community was given to Susan's daughter as a gift, and (4) awarding the family residence to him rather than ordering it sold and the proceeds divided.

We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

James and Susan married in June 1995 and separated in December 2006. The parties have one minor child of the marriage, a son.

James filed a petition for dissolution of marriage in June 2007. In November 2007, the court ordered James to pay $694 in child support and $1,653 in spousal support per month. The parties shared custody of their son on an equal time-share basis, and custody was not contested.

On September 26, 2008, the trial court issued the following minute order: "PLEASE TAKE NOTICE, on the Court's own motion, [t]he 2-day Court Trial is continued to December 3 & 4[,] 2008 at 10:00 a.m. in the Bridgeport Court facility. Please be advised that a Court Reporter will not be provided by the Court." (Italics added.) The notice was mailed to both parties. The record does not show that James requested an official court reporter or made any effort to provide his own certified court reporter.

A court trial was held on December 4 and 5, 2008, and addressed issues of spousal support, division of property, and attorney's fees. A court reporter was present on the first day of trial. The second day of trial on December 5, 2008, proceeded without a court reporter being present. The record does not indicate that James objected to the absence of a court reporter. Following trial, the parties filed written arguments, the last of which were filed by James on January 14, 2009.

On April 13, 2009, the court issued a tentative statement of decision. James filed objections on May 11, 2009. On August 13, 2009, the court issued a final statement of decision. The court's decision awarded the family residence to James, which was valued at $740,000 and encumbered by a deed of trust and line of credit.

The parties' interest in a condominium was divided equally, and Susan was ordered to bear all expenses incurred during her residency in the unit. The decision awarded a Toyota to Susan, with a credit to James. As to the other vehicle owned by the marital community, the court ruled that "the Kia was a gift to [Susan's] daughter." The court also divided other community assets and debts.

The court found that James earned $11,471 in cash compensation and $5,319 in "other/nontax benefits" per month. Susan earned $3,750 per month. Accordingly, the court ordered that "[f]or spousal support [James] shall pay monthly to [Susan] the sum of $2250 for a period of 48 months from the date of judgment, which will afford [Susan] ample time to become self-sufficient, after which jurisdiction of the court on this issue shall terminate." The court noted that neither child custody nor child support was at issue.

Finally, the court ordered James to pay $15,000 in attorney's fees to Susan because "[t]he amount of attorney fees incurred by [husband] is staggering and out of all proportion to the value of the community estate and issues presented herein. The process to and through trial was driven largely by [husband's] attorney changes and tactics employed, and consequently [wife's] fees were increased beyond what one would reasonably expect to have been the case."

The parties filed several responses to the statement of decision, which was erroneously designated as a judgment. Susan filed objections to the statement of decision, a motion to amend the judgment or for new trial, and a proposed judgment. James filed objections to the statement of decision and a motion for new trial.

On September 24, 2009, the court corrected its designation of the statement of decision and directed the preparation of the final judgment to be filed nunc pro tunc as of September 24, 2009. The court set a date to hear James's motion for new trial.

The court entered a judgment of dissolution on November 13, 2009. On December 17, 2009, the court denied James's motion for new trial but allowed him "to rectify procedural defects in [the] motion for new trial" by filing a curative declaration by January 8, 2010.

James filed a "corrected" motion for new trial on January 8, 2010. The trial court denied James's renewed motion for new trial on January 15, 2010. In an order after hearing filed on February 3, 2010, the court clarified the retroactivity of the support order and confirmed the $2,250 monthly spousal support obligation.

James timely filed notices of appeal from the judgment of dissolution and the December 17, 2009, order after hearing. However, James did not file an agreed statement or move for a settled statement of the untranscribed testimony given on the second day of trial. (See Cal. Rules of Court, rules 8.134(b)(1), 8.137(a)(2)(B).)

DISCUSSION

I

Standard of Review

When reviewing the statement of decision, we presume that the trial court made all findings necessary to sustain the judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Thus, we draw all inferences in favor of the judgment unless the record expressly contradicts them. (Ibid.) An appellant must affirmatively demonstrate grounds for reversal because trial court error will not be assumed. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549 (Sullivan).)

II

Adequate Record on Appeal

The party challenging the judgment or order has the burden of showing error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Estate of Davis (1990) 219 Cal.App.3d 663, 670 & fn. 13.)

An appellant "bears the burden to provide a record on appeal which affirmatively shows that there was an error below, and any uncertainty in the record must be resolved against the [appellant]." (Sullivan, supra, 151 Cal.App.4th at p. 549; accord People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084.)

"Without the benefit of the entire record, we cannot say that the evidence is insufficient to support the finding of [the trial court]. Every intendment is in favor of the findings and judgment of the court below, and in support thereof it will be presumed that the omitted evidence authorized the same unless there is something in the record to overcome the presumption." (In re Silva (1931) 213 Cal. 446, 448.)

In this case, there is no transcript of the second day of trial. The fact that there was no court reporter at the second day of trial is not a valid excuse. In lieu of a reporter's transcript, an appellant may proceed by way of an agreed or settled statement. (Leslie v. Roe (1974) 41 Cal.App.3d 104, 108; see Cal. Rules of Court, rules 8.134, 8.137.) James did not pursue either option.

III

Notice Regarding Court Reporters for Trial

James argues that he did not receive notice that a court reporter would not be provided throughout trial. We disagree.

James argues that rules 6.1 to 6.4 of Mono County Superior Court Local Rules did not give him proper notice that he had to provide his own court reporter during trial.*fn2 Thus, he urges us to reverse the judgment on grounds that the local rules conflict with Government Code section 68086*fn3 and California Rules of Court, rule 2.956.*fn4 James also asserts that a notice regarding provisions for court reporters was not conspicuously posted in the superior court clerk's office.

The record in this case indicates that James received actual notice that a court reporter would not be provided during trial. Thus, he received the "adequate and timely notice" regarding the availability of an official court reporter as required by Government Code section 68086. The trial court's September 2008 minute order clearly put the parties on notice that they would have to make their own provisions for a court reporter during the December 2008 trial.

James does not deny that he received the minute order in which the court advised him that a court reporter would not be provided at trial. Instead, he complains that the local rules regarding court reporters "are so unclear that they seem to require a court reporter." Not so.

Rules 6.1 and 6.2 inform parties that they must bear the cost of court reporters except for "[f]elony matters, juvenile proceedings, etc." for which a reporter is "statutorily required." Rule 6.2 expressly places the financial burden of court reporting on the parties. Moreover, by distinguishing between cases for which a court reporter is required by statute or the California Rules of Court and those in which a party "requests a court reporter," rule 6.2 indicates that parties bear the burden of securing a court reporter when not provided as a matter of law. Although rule 6.3 relieves a party of the obligation to pay the cost for the first hour of transcription when a court reporter is provided, the rule does not eliminate the burden on the party to request a court reporter in cases in which a court reporter is not required by rule or statute. Rule 6.4 simply advises parties that they should pay court reporters directly.

We reject James's attempt to excuse his failure to request a court reporter during trial by claiming a deficiency in the local rules. In any event, he cannot deny that the clerk of the court sent him a timely notice that a court reporter would not be provided at his trial.

Further, the record is silent as to whether Mono County Superior Court failed to "post in the clerk's office a local policy enumerating the departments in which the services of official court reporters are normally available." (Cal. Rules of Court, rule 2.956(b)(1).) James acknowledges, "It is surely not 'in the record,' as [pointed out by Susan], that there is no posting in Mono County Courts that there are no reporters available for certain hearings . . . ." This means that James did not tender a record sufficient to support his argument that the required notice was not posted in the superior court clerk's office. Thus, James failed to meet his burden to provide a record on appeal that shows error by the trial court, and any uncertainty in the record must be resolved against James. (Sullivan, supra, 151 Cal.App.4th at p. 549.) Moreover, we presume that an official has correctly discharged his or her duties unless a party demonstrates otherwise. (Evid. Code, § 664.)

James has failed to meet his burden of showing that he did not receive proper notice that a court reporter would not be provided during trial.

IV

Calculation of James's Spousal Support Obligation

James contends the trial court erred in deeming his mandatory retirement contribution to be income for purposes of calculating spousal and child support.*fn5 James further argues that the court mistakenly valued the car provided by his employer at $600 per month. We reject the contentions.

The trial court ordered James to pay $2,250 in spousal support for a period of 48 months. On this point, the statement of decision explains: "Income findings are as follows: [James's] income is $137,649 annually, which calculates to $11,471 monthly (cash). [James's] benefit due to city car is $600 monthly. [James's] other/nontax benefits total[] $5319 monthly. The optical and dental plan is a 'reimbursement plan' which provides no income benefit to [James]. [Susan's] current monthly income is $3750."

James relies on In re Marriage of Olson (1993) 14 Cal.App.4th 1 (Olson) to argue that the trial court erred in including mandatory retirement contributions as part of his income when calculating his support obligation. The Olson court noted that "trial courts possess broad discretion when setting or modifying permanent spousal support about whether to consider as income contributions to individual retirement plans by a participant and accruals therein not withdrawn. The Legislature has wisely left this within the court's discretion. It is easy to foresee cases where contributions and accruals are best not considered as income available to pay permanent spousal support. In other cases, it may be appropriate to consider all or part of either or both as being available for permanent spousal support. The trial court is in the best position to determine under the facts and circumstances of each case how its discretion should be exercised, given the dual, but possibly conflicting, public policies of awarding spousal support where appropriate and of encouraging citizens to save for their retirement." (Id. at p. 12.)

To support his argument that his mandatory retirement contributions should not be considered in calculating spousal support, James focuses on dicta in a footnote where the Olson court noted: "Although not before us, it appears trial courts possess the broadest possible discretion to consider, partially consider, or refuse to consider contributions to retirement plans and accruals in such plans as income available for temporary spousal support. If the plan is an employer sponsored plan, such as many governmental plans, the contributions may be mandatory and should not be considered. If the parties have regularly made non-mandatory contributions, the court may favor continuing to do so to preserve the status quo pending trial. (See In re Marriage of Winter (1992) 7 Cal.App.4th 1926.) On the other hand, if the contributions are not mandated, the financial strain resulting from the separation may be so great that the court will consider, as income available for support, money which would otherwise have been contributed to a retirement plan. Under these circumstances, it may be necessary to forego contributions to the plan temporarily in order for the parties to financially survive until trial." (Olson, supra, 14 Cal.App.4th at p. 12, fn. 12.)

Based on the assertion that the "other/nontax benefits" found by the court to total $5,319 per month were mandatory retirement contributions, James concludes that the court erred in considering this amount when calculating his spousal support obligation. However, the statement of decision does not find that the retirement contribution was mandatory. The court's decision does not even identify what comprised the benefits characterized as "other/nontax."

When reviewing the statement of decision, we presume that the trial court made all findings necessary to sustain the judgment. We draw all inferences in favor of the judgment unless the record expressly contradicts them. (Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133.) Here, the inferences in favor of the statement of decision's findings must remain undisturbed because James has tendered a record insufficient to show that the evidence fails to support the court's findings.

Even if the extant portion of an incomplete reporter's transcript indicated evidentiary error, we would nonetheless be compelled to affirm. A reversal of the judgment may not be made except after a review of the entire record. (Cal. Const., art. VI, § 13.) "Appellate inquiry into prejudice is not a process of subtracting the invalid elements to ascertain whether the remaining record is adequate to sustain [the judgment]. Rather, the process entails scrutiny of the entire record to determine the error's influence." (People v. Hopper (1969) 268 Cal.App.2d 774, 778, italics added.) Appeals made on inadequate records preclude review of evidentiary findings.

For the same reason, we reject James's challenge to the trial court's finding that the automobile provided by his employer for his use had a monthly value of $600. Lacking a transcript of the second day of trial, we cannot review the testimony given by James or Susan. And, as we have already noted, James did not file an agreed statement or move for a settled statement to fill in the gaps in the reporter's transcript.

On this record, James cannot meet his burden to demonstrate error in the trial court's findings regarding the nature of the $5,319 in "other/nontax" monthly benefits or the value of the car provided to him by his employer.

V

Gift of Kia Automobile

James contends the trial court erred in finding that one of the marital community's vehicles, a Kia, was given to Susan's daughter as a gift. As with the issue of spousal support, the lack of a complete transcript precludes review of the trial court's finding that the Kia was a gift. An incomplete reporter's transcript precludes review of trial testimony for evidentiary error because the missing portions will be presumed to support the judgment. (In re Silva, supra, 213 Cal. at p. 448.) Thus, the record cannot negate the possibility that James or Susan testified that the car was given to her daughter as a gift.

Even with a full reporter's transcript, attacks on trial court factual findings rarely warrant reversal because we do not reweigh the evidence or second-guess witness credibility. (People v. De Paula (1954) 43 Cal.2d 643, 649.) Without a reporter's transcript of James's and Susan's testimony, his challenge to the evidentiary finding of donative intent for the Kia cannot succeed.

VI

Claimed Error in the Award of the Family Residence to James

James contends the trial court abused its discretion by awarding the family residence to him because the court was required to order it sold and the proceeds equally divided. We reject the contention.

James requested that the trial court award the family residence to him before, during, and after trial. Prior to trial, James marshaled evidence about the value of the home so that it could be awarded to him with a credit to Susan for half of its value.

On the first day of trial, James testified that he wanted to continue living in the family residence with his son. He stated that he "should be allowed to sell the family residence" if "financial difficulties arise." After trial, James filed a rebuttal to Susan's closing argument in which he unequivocally stated that "it is the intent of the parties that [James] retain the family residence." His rebuttal further argued that James "has occupied the family residence since separation and it would be inequitable to now transfer the home to [Susan] who cannot qualify for a loan."

In granting James's request to be awarded the family residence, the trial court expressly adopted James's pretrial valuation of the property. In doing so, the court noted that it "cannot ignore [James's] failure to update his Schedule of Assets and Debts before trial which place the property's value at $740,000, and his evidence at trial was otherwise insubstantial in any event."

On January 8, 2010 -- more than a year after trial -- James filed a motion for new trial on the current value of the family residence and requested that the statement of decision be amended to allow the family residence to be sold and the proceeds divided.

As the California Supreme Court has explained, "[e]stoppel long has been utilized to prevent a party from contesting the validity of a judgment that was procured by that party." (Kristine H. v. Lisa R. (2005) 37 Cal.4th 156, 162 (Kristine H.).) In Kristine H., lesbian partners jointly filed a complaint to declare the validity of both of their parental rights for an unborn child being carried by Kristine. Thus, they sought a stipulated judgment that declared them the "'joint intended legal parents' of the unborn child with Kristine being listed on the birth certificate 'as mother' and Lisa being listed 'in the space provided for "father."'" (Id. at p. 161.) The judgment was entered as requested, and the child was born shortly thereafter. (Ibid.) Two years later, Kristine moved to set aside the stipulated judgment, claiming it had been entered in excess of the court's jurisdiction because the child had not yet been born at the time of judgment.

The Kristine H. court applied the doctrine of estoppel to dismiss Kristine's challenge. The high court explained that Kristine's invocation of the court's jurisdiction, stipulation to the judgment, and enjoyment of the benefits for two years, precluded her from attacking the relief she herself requested. (Kristine H., supra, 37 Cal.4th at pp. 161-162.)

So too, James is estopped from attacking the propriety of a disposition for the family residence that he requested before, during, and after trial. James's change of mind more than a year after trial did not negate his prior, unequivocal requests for the family residence.

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